The Abolition of Wealth Transfer Taxes

62 Pages·2005·0.67 MB·English

by  David G. Duff

The Abolition of Wealth Transfer Taxes:
Lessons from Canada, Australia, and New Zealand
David G. Duff*
* Associate Professor, Faculty of Law, University of Toronto. I am indebted to Alan Macnaughton, Richard
Schmalbeck and Larry Zelenak for helpful comments on earlier drafts. I am also indebted to Doug
Robertson, a J.D. student at the University of Toronto Faculty of Law, for excellent research assistance, and
to the Social Science and Humanities Research Council of Canada for financial support.
Table of Contents
Abstract...............................................................................................................................3
I. Introduction.....................................................................................................................4
II. Public Choice Theory and Tax Policy............................................................................7
A. Public Choice and Political Efficiency.......................................................................7
1. Voters.......................................................................................................................8
2. Politicians and Political Parties..............................................................................11
3. Organized Interest Groups.....................................................................................13
4. Public Policy and Political Efficiency....................................................................14
B. Political Efficiency and Tax Policy..........................................................................15
III. Wealth Transfer Taxes in Canada, Australia and New Zealand.................................20
A. The Abolition of Wealth Transfer Taxes in Canada.................................................25
1. The Carter Commission: 1962- 1967.....................................................................26
2. Federal Reform: 1967-1971...................................................................................29
3. Provincial Aftermath: 1971-1985...........................................................................41
B. The Abolition of Wealth Transfer Taxes in Australia..............................................47
C. The Abolition of Wealth Transfer Taxes in New Zealand .......................................54
D. Public Choice Theory and the Abolition of Wealth Transfer Taxes........................55
IV. Conclusion..................................................................................................................59
2
Abstract
When the United States acted to phase-out its estate tax by 2010, it joined a small
but growing group of countries which have also repealed their wealth transfer taxes. In
Canada, federal gift and estate taxes were repealed in 1972 and provincial wealth transfer
taxes were abolished in the 1970s and 1980s. In Australia, State and Commonwealth
wealth transfer taxes were repealed in the late 1970s and early 1980s. New Zealand
followed suit in the 1990s, reducing estate tax rates to zero in 1992 and repealing the tax
in 1999.
This paper reviews the abolition of wealth transfer taxes in Canada, Australia and
New Zealand, relying on public choice theories of politically efficient revenue structures
to help explain the repeal of these taxes in each country. Part II outlines the essential
elements of public choice theory and its implications for tax policy. Part III surveys the
history of wealth transfer taxes in Canada, Australia and New Zealand, examining in
detail the events leading up to the repeal of these taxes, and illustrating the relevance of
public choice theory to their abolition in each country. Part IV offers brief conclusions on
the significance of this experience for the future of wealth transfer taxation in these and
other countries.
3
I. Introduction
When the U.S. Congress voted to phase-out the federal estate tax by 2010 and
President Bush signed the legislation in June 2001,1 the United States joined a small but
growing number of developed countries in which taxes on the transfer of wealth have
been abolished.2 In Canada, federal gift and estate taxes were repealed in 1972 and
provincial wealth transfer taxes were abolished in the 1970s and 1980s. In Australia,
State and Commonwealth wealth transfer taxes were repealed in the late 1970s and early
1980s. New Zealand followed suit in the 1990s, reducing estate tax rates to zero in 1992
and repealing the tax in 1999. While the United Kingdom continues to collect taxes on
the transfer of wealth, the role of these taxes has declined substantially over the last 30
years,3 and calls for repeal are often heard.4 As a result, U.S. repeal should no be viewed
as an isolated event but as part of a broader international trend.
1 Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L. No. 107-16, § 501, 115 Stat. 38, 69
(2001). The phase-out is accomplished by increasing the exclusion amount and reducing rates between
2002 and 2009, culminating in repeal for the year 2010. Under a sunset provision, however, the legislation
providing for this phase-out and repeal is itself repealed after December 31, 2010 – resulting in the
restoration of the tax in 2011. For a detailed description of this legislation, see Tye J. Klooster, “Repeal of
the Death Tax? Shoving Aside the Rhetoric to Determine the Consequences of the Economic Growth and
Tax Relief Reconciliation Act of 2001” (2003), 51 Drake L. Rev. 633-65. According to one commentator,
“[t]he fact that there will be two presidential and four congressional elections before the estate tax is fully
repealed means that it is possible that the repeal will never happen at all or that the sunset provision will
stand and the estate tax will return in 2011.” Mary R. Wampler, “Repealing the Federal Estate Tax: Death
to the Death Tax, or Will Reform Save the Day?” (2001), 25 Seton Hall L.J. 525 at 534.
2 For an excellent account of the events leading up to repeal in the U.S., see Michael J. Graetz and Ian
Shapiro, Death by a Thousand Cuts: The Fight over Taxing Inherited Wealth, (Princeton: Princeton
University Press, 2005). For a recent argument that Congress might benefit from uncertainty regarding
repeal of the federal gift and estate taxes, see Edward J. McCaffery and Linda R. Cohen, “Shakedown at
Gucci Gulch: A Tale of Death, Money and Taxes” University of Southern California Law and Economics
Research Paper No. 04-20, available at http://ssrn.com/abstract=581084.
3 See Organisation for Economic Cooperation and Development, Revenue Statistics of O.E.C.D. Countries,
(2003), available online at http://hermia.ingentaselect.com/vl=4595239/cl=65/nw=1/rpsv/ij/oecdstats/
16081099/v55n1/contp1-1.htm (in 1972, estate and gift taxes accounted for 2.3 percent of total revenues in
the U.K. and 0.7 percent of gross domestic product; in 2002, these figures were 0.6 percent and 0.2 percent
respectively).
4 See, e.g., Barry Bracewell-Milnes, Euthanasia for Death Duties: Putting Inheritance Tax Out of its
Misery, (London: Institute of Economic Affairs, 2002). The Conservative Party’s 2005 election platform
calls for cuts to the U.K. Inheritance Tax, but not repeal.
4
Whatever the advantages or disadvantages of these taxes,5 commentators are often
puzzled by the apparent political vulnerability of wealth transfer taxes since they
generally apply only to a small percentage of substantial estates.6 For some, political
opposition to these taxes stems from psychological factors, such as the association
between the tax and death,7 or an irrational optimism on the part of many people that they
will actually be subject to the tax.8 For others, it is largely ideological, reflecting a
conservative emphasis on individual enterprise and an increased hostility to redistributive
taxation.9 Although conservative electoral victories have certainly contributed to the
decline of wealth transfer taxes,10 however, more progressive political parties have also
5 The merits of these taxes are widely disputed. Advocates tend to emphasize their contribution to tax
progressivity,their social role to lessen inequalities and unequal opportunities, and their assumed economic
superiority to income taxes. See, e.g., Michael J. Graetz, “To Praise the Estate Tax, Not to Bury It” (1983),
93 Yale L.J. 259; Eric Rakowski, “Transferring Wealth Liberally” (1996), 51 Tax L. Rev. 419; and Joseph
A. Pechman, Federal Tax Policy, 5th ed., (Washington, D.C.: Brookings Institution, 1987) at 234
(commenting that wealth transfer taxes have “less adverse effects on incentives than do income taxes of
equal yield”). Critics, on the other hand, condemn their relatively low revenue yield, high collection costs,
avoidability, and alleged impact on savings and entrepreneurship. See, e.g., Richard E. Wagner, Death and
Taxes: Some Perspectives on Inheritance, Inequality, and Progressive Taxation, (Washington, D.C.:
American Enterprise Institute, 1973); Joel C. Dobris, “A Brief for the Abolition of All Transfer Taxes”
(1984), 35 Syracuse L. rev. 1215; Edward J. McCaffery, “The Uneasy Case for Wealth Transfer Taxation”
(1994), 104 Yale L.J. 283; and Edward J. McCaffery, “The Political Liberal Case Against the Estate Tax”
(1994), 23 Phil. & Pub. Aff. 281. For my own views on wealth transfer taxation, see David G. Duff,
“Taxing Inherited Wealth: A Philosophical Argument” (1993), 6 Can. J. L. & Juris. 3.
6 In the United States. for example, only 4.3 percent of decedents were required to file estate tax returns in
1998, and only half of these were required to pay any tax. See William G. Gale and Joel Slemrod,
“Overview” in William G. Gale, James R. Hines Jr., and Joel Slemrod, eds., Rethinking Estate and Gift
Taxation, (Washingston, D.C.: Brookings Institution, 2001) 1-64 at 7-9. In the United Kingdom, it is
estimated that only 3.5 to 4 percent of estates pay inheritance tax. See Domenic Maxwell, Fair Dues:
Towards a more progressive inheritance tax, (London: Institute for Public Policy Research, 2004) at 11.
7 See, e.g., Richard Bird, “The Taxation of Personal Wealth in International Perspective” (1991), 17 Can.
Pub. Pol’y 322 at 330 (pointing to “the conjuncture of two events [death and taxes] that few people
contemplate with pleasure”).
8 See, e.g., Graetz, supra note 5 at 285.
9 See, e.g., Keith G. Banting, “The Politics of Wealth Taxes” (1991), 17 Can. Pub. Pol’y 351 at 364. See
also Edward J. McCaffery, Fair Not Flat: How to Make the Tax System Better and Simpler, (Chicago:
University of Chicago Press, 2003) at 66 (suggesting that wealth transfer taxes contradict “common-sense
morality”). For a detailed study of the relationship between ideological perspectives and wealth transfer
taxes in Canada, see Lisa Philipps, Taxing Inherited Wealth: Ideologies About Property and the Family in
Canada, LL.M. Thesis, Osgoode Hall Law School (1992).
10 In the United States, for example, Republican control of the Congress and the White House precipitated
repeal of the federal estate tax in 2001. See Graetz and Shapiro, supra note 2. Likewise, in Australia,
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been willing to abandon these taxes and have been reluctant to restore them once
repealed.11
In addition to these explanations for the decline and repeal of wealth transfer
taxes, public choice theory provides an alternative account, emphasizing the political
costs and benefits of different tax policies and the tendency for electoral competition to
promote “political efficiency” in the revenue structures adopted by governments over
time.12 To the extent that wealth transfer taxes entail greater political costs and fewer
perceived benefits than other tax measures yielding comparable revenue yields, it is not
surprising that they might be politically vulnerable.
This paper examines the abolition of wealth transfer taxes in Canada, Australia
and New Zealand, relying on public choice theories of politically efficient revenue
structures to help explain the repeal of these taxes in each country. Part II outlines the
essential elements of this theoretical approach and its implications for tax policy. Part III
surveys the history of wealth transfer taxes in Canada, Australia and New Zealand,
examining in detail the events leading up to the repeal of these taxes, and illustrating the
relevance of public choice theory to their abolition in each country. Part IV offers brief
conclusions on the significance of this experience for the future of wealth transfer
taxation.
electoral victory by the Liberal Party under Malcolm Fraser preceded the repeal of the federal estate tax
effective 1 July 1979.
11 In Canada, for example, it was the Liberal Party under Prime Minister Pierre Trudeau which repealed the
federal gift and estate taxes in 1971, notwithstanding that Trudeau had campaigned and won the 1968
election by promising a “Just Society”. Similarly in Australia, Labour Prime Minister Gough Whitlam
promised to abolish federal death duties in 1975 in an unsuccessful bid to stay in office. In the U.S. as well,
as Graetz and Shapiro document, Democrats have been reluctant to defend the estate tax. See Graetz and
Shapiro, supra note 2.
12 See, e.g., Walter Hettich and Stanley L. Winer, Democratic Choice and Taxation: A Theoretical and
Empirical Analysis, (Cambridge: Cambridge University Press, 1999); and W. Irwin Gillespie, Tax, Borrow
and Spend: Financing Federal Spending in Canada., 1867-1900, (Ottawa: Carleton University Press,
1991).
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II. Public Choice Theory and Tax Policy
In the fields of public finance and tax policy, much writing is essentially
normative, establishing criteria for an ideal tax structure and evaluating actual tax
regimes against this ideal.13 In contrast, public choice theories of politically efficient
revenue structures are largely positive, attempting to explain the kinds of tax structures
and tax reforms that actually exist in modern democratic societies.14 The following
sections provide a brief introduction to this theoretical approach, explaining the main
determinants of political efficiency within this framework and the manner in which
political efficiency is apt to be pursued through tax policy.
A. Public Choice and Political Efficiency
Public choice theory has been defined as “the economic study of nonmarket
decision making” or “the application of economics to political science.”15 As such, it
concerns itself with traditional topics of political science such as voting behaviour, party
politics, and interest group activities, but examines these phenomena through the lens of
economic methodology premised on rational choice subject to constraints.16 As economic
13 This is true of traditional public finance as well as more recent theories of optimal taxation. See, e.g.,
Richard A. Musgrave, Peggy B. Musgrave, and Richard M. Bird, Public Finance in Theory and Practice,
(Toronto: McGraw-Hill Ryerson Ltd., 1987); and James A. Mirrlees, “An Exploration in the Theory of
Optimum Income Taxation” (1971), 38 Rev. Econ. Stud. 175. It is also true of much legal tax scholarship,
particularly scholarship based on the Haig-Simons concept of income, and the concept of tax expenditures
pioneered by Stanley Surrey. See Henry C. Simons, Personal Income Taxation: The Definition of Income
as a Problem of Fiscal Policy, (Chicago: University of Chicago Press, 1938); and Stanley S. Surrey,
Pathways to Tax Reform: The Concept of Tax Expenditures, (Cambridge, MA: Harvard University Press,
1973).
14 Gillespie, supra note 12 at 14-17. Not surprisingly, of course, these positive theories may have normative
implications regarding, for example, constitutional arrangements regarding the manner in which revenue
decisions are made. See, e.g., James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical
Foundations of Constitutional Democracy, (Ann Arbor: University of Michigan Press, 1962). See also
Gillespie, supra note 12 at 17 (suggesting that “a positive model of revenue structure could assist those of
us who advise governments on the tax changes that ought to be made”).
15 Dennis C. Mueller, Public Choice II, (Cambridge: Cambridge University Press, 1989) at 1.
16Ibid. at 1-2.
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analysis predicts that a perfectly competitive market tends toward an equilibrium at
which economic resources are efficiently allocated, so public choice theory predicts that
competition among political parties tends toward a political equilibrium where public
policies assume a politically efficient form.17 In order to understand this concept of
political efficiency and the form that it is likely to take, it is useful to examine the
motivations and constraints that public choice theory assigns to the central actors in the
political process: voters, politicians and political parties, and organized interest groups.18
1. Voters
The starting point for a public choice theory of political efficiency is a set of
assumptions regarding voters and the reason why they vote. Sharing with economic
theory the premise that individuals are rational utility maximizers,19 public choice theory
postulates that voters will generally cast their ballots for candidates and political parties
whose policies are expected to maximize their net utility.20 In the context of government
expenditure and revenue policies, public choice theories generally assume that voters will
favour candidates and political parties whose policies are expected to maximize the
benefits that they receive from government expenditures while minimizing the taxes that
17 See, e.g., Hettich and Winer, supra note 12 at 2; and Gillespie, supra note 12 at 16.
18 Although it is not essential for the purpose of this paper, many public choice theories also consider the
behaviour of the bureaucracy and the mass media. See, e.g., Douglas G. Hartle, The Expenditure Budget
Process of the Government of Canada: A Public Choice-Rent Seeking Perspective, Canadian Tax Paper
No. 81 (Toronto: Canadian Tax Foundation, 1988) at 35-68.
19 See, e.g., Mueller, supra note 15 at 2.
20 For an early expression of this rational voter hypothesis, see Anthony Downs, An Economic Theory of
Democracy, (New York: Harper and Row, 1957). See also Gordon Tullock, Towards a Mathematics of
Politics, (Ann Arbor: University of Michigan Press, 1967) at 110-114; and William Riker and Peter
Ordeshook, Introduction to Positive Political Theory, (Englewood Cliffs, N.J.: Prentice-Hall, 1973). While
the concept of “utility” for this purpose might be broadly defined to include an inter-subjective interest in
the welfare of others or a Kantian concern with just social institutions, public choice theory tends to ignore
this possibility by assuming an egoistic conception of human beings and a narrow and self-interested notion
of utility.
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they are required to pay.21 Voters may also favour certain kinds of taxes over others,
notwithstanding that amounts owing are the same, suggesting that differential preferences
for different kinds of taxes may also play a role in voting decisions.22
In addition to the hypothesis that voters will select candidates and political parties
whose policies are expected to maximize their net utility, public choice theory also
predicts that voting decisions are generally based on limited knowledge of actual policies
and their likely consequences. Since the time and effort to obtain this information is
considerable, and the probability of one’s vote affecting the outcome of an election is
negligible, public choice theory predicts that most voters will remain “rationally
ignorant” of most policies – ignoring specific details and basing their choices on
perceived impacts on net utility as well as more general perceptions of trustworthiness
and feelings of emotional attachment.23 In the field of tax policy, this phenomenon is
likely to be particularly pronounced given the complexity of the issues involved.24 Since
the expected benefits of acquiring information are greater where policies touch on one’s
most immediate interests, however, voters are likely to devote more resources to inform
21 See, e.g., Gillespie, supra note 12 at 17 (explaining that political parties in the pursuit of electoral victory
attempt to “maximize the political benefits from spending and minimize the political costs of financing the
spending”).
22Ibid. at 26-27. To the extent that differential preferences for different kinds of taxes reflect notions of tax
fairness, the recognition of these tax preferences as a factor in voting decisions suggests that voters may be
motivated by something other than self-interest narrowly understood. For an attempt to rationalize ideas of
tax fairness in terms of utility maximization, see Douglas G. Hartle, Political Economy of Tax Reform: Six
Case Studies, Discussion Paper No. 290 (Ottawa: Economic Council of Canada, 1985) at 52-54.
23 See, e.g., Downs, supra note 20, chapters 11-13.
24 See, e.g., Douglas G. Hartle, “Some Analytical, Political and Normative Lessons from Carter” in W. Neil
Brooks, ed., The Quest for Tax Reform, (Toronto: Carswell, 1988) at 415 (suggesting that most voters’
perceptions of their own interests are “more likely than not, seriously flawed when it comes to the details of
the tax structure as a whole”); and Banting, supra note 9 (emphasizing that “[m]ost voters are not well-
informed about the complex world of taxation” and that “[t]here is limited understanding not only of
technical language and abstract concepts such as equity, but also of elementary issues such as whether one
would benefit from a specific proposal”).
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themselves about these measures.25 As a result, affluent individuals and corporations can
be expected to be much better informed and well-advised than most about the taxes they
pay and about the tax policies proposed by politicians and political parties.26
Not surprisingly, critics have challenged as limited and unrealistic both the self-
interested view of voting that public choice theory assumes and the egoistic conception of
human beings on which it is based.27 Indeed, since it is irrational to expect that a single
vote will affect the outcome of an election, the very act of voting itself suggests that
voters must be motivated by considerations other than self-interested utility maximization
narrowly defined.28 While one might attempt to rescue the theory of self-interested voting
by assuming a psychological benefit from the act of voting,29 or distinguishing the
(unselfish) decision to vote from the (selfish) choice of candidate or political party, it
seems more realistic to admit that altruistic and ethical motivations are likely to mix with
more selfish considerations when voters case their ballots.30 At the same time, the theory
that most voters remain rationally ignorant of actual policies calls into question the
significance of their votes for public policy more generally.31
25 Hartle, supra note 22 at 25.
26 See, e.g., Banting, supra note 9 at 353 (observing that “those with a large stake in tax battles inform
themselves and equip themselves with a phalanx of professional advisors”).
27 See, e.g., Joseph P. Kalt and Mark A. Zupan, “Capture and Ideology in the Economic Theory of Politics”
(1984), 74 Am. Econ. Rev. 279; and Herbert Hovenkamp, “Legislation, Well-Being and Public Choice”
(1990), 57 U. Chi. L. Rev. 63. For more general criticisms of public choice theory, see Mark Kelman, “On
Democracy-Bashing: A Skeptical Look at the Theoretical and ‘Empirical’ Practice of the Public Choice
Movement” (1988), 74 Va. L. Rev. 199; and Daniel A. Farber and Philip P. Frickey, Law and Public
Choice: A Critical Introduction, (Chicago: University of Chicago Press, 1991).
28 See the discussion of this “paradox” of voting, see Mueller, supra note 15 at 348-69.
29 See, e.g., Daniel Shaviro, “Beyond Public Choice and Public Interest: A Study of the Legislative Process
as Illustrated by Tax Legislation in the 1990s” (1990), 139 U. Penn. L. Rev. 1 at 77 (suggesting that the act
of voting can be understood as a source of utility in itself, “involving symbolic or expressive behavior”).
30 See, e.g., Robert E. Goodin and Kevin W.S. Roberts, “The Ethical Voter” (1975), 69 Amer. Pol. Sci. Rev.
926; Howard Margolis, Selfishness, Altruism, and Rationality, (Cambridge: Cambridge University Press,
1982); and Amitai Etzioni, “The Case for a Multiple Utility Conception” (1986), 2 Econ. & Phil. 159.
31 See, e.g., Geoffrey Brennan and James M. Buchanan, “Voter Choice: Evaluating Political Alternatives”
(1984), 28 American Behavioral Scientist 185 (arguing that voting decisions are primarily expressive or
symbolic rather than instrumental).
10